LANDMARK HIGH COURT VICTORY

BOOTH v. AMACA PTY LTD & ANOR (FORMERLY JAMES HARDIE & COY PTY LTD)

The High Court of Australia dismissed Appeals to award damages to brake lining victim exposed to asbestos.

John William Booth contracted malignant pleural mesothelioma, a cancer of the lining of the lung that is only caused by asbestos, when he was 71 years of age.

Mr Booth had worked with brake linings containing asbestos for a period of about 30 years, commencing from the early 1950’s. The majority of the brake linings that he worked with were manufactured by James Hardie & Coy Pty Limited (now called Amaca) and a related Hardie company called Hardie Ferodo Pty Limited (now called Amaba). He was also exposed to asbestos from working with brake linings manufactured by other companies, from helping his father with work on the family home using fibro sheets and from carting a load of raw asbestos fibre from the Sydney waterfront.

Mr Booth commenced proceedings in the Dust Diseases Tribunal of NSW, a specialist court established to hear cases for compensation for asbestos disease, claiming compensation from both Amaca and Amaba.

Mr Booth’s case proceeded to hearing before Judge Curtis of the DDT in February 2010. A number of medical expert witnesses gave evidence in Mr Booth’s case including Professor Henderson and Dr Leigh, both world recognised experts in the area of the diagnosis and cause of mesothelioma. Amaca and Amaba defended the claim vigorously. Both companies relied on epidemiological studies in an attempt to argue that their products were not a cause of Mr Booth’s mesothelioma. Neither company called expert medical evidence to show that their products were not a cause of Mr Booth’s mesothelioma. Instead, Amaca and Amaba argued that while the state of medical knowledge was sufficient to prove that asbestos was the sole cause of mesothelioma, the state of medical knowledge did not allow Mr Booth to prove that asbestos products manufactured by Amaca and Amaba were a cause of his mesothelioma.

Judge Curtis found in Mr Booth’s favour on 10 May 2010 and awarded him $326,640 plus his costs. Mr Booth had previously offered to settle his claim for $250,000 plus costs and so Judge Curtis ordered Amaca and Amaba to pay Mr Booth’s costs on an indemnity basis from July 2009. Judge Curtis not only accepted the evidence of Mr Booth’s medical witnesses but also found that as early as 1953 Amaca should have been aware that its products could cause asbestos disease.

Both Amaca and Amaba subsequently appealed to the NSW Court of Appeal. Both companies vigorously argued that the asbestos contained in their products could not be proven to be a cause of Mr Booth’s mesothelioma. Three Appeal Judges of the NSW Court of Appeal unanimously dismissed the appeals with costs on 10 December 2010.

Both Amaca and Amaba sought special leave of the High Court of Australia to appeal the decision of the NSW Court of Appeal. On 10 June 2011, the High Court of Australia granted Amaca and Amaba leave to appeal the decision of the NSW Court of Appeal but only on a limited basis, that being whether the expert evidence relied on by Mr Booth could establish that the asbestos in Amaca’s and Amaba’s brake linings was a cause of Mr Booth’s mesothelioma. In addition, the High Court required Amaca and Amaba to pay Mr Booth’s costs of the proceedings in the DDT, NSW Court of Appeal and High Court, regardless of the outcome because Amaca and Amaba were using Mr Booth’s case as a test case that might establish a precedent to be followed in other cases.

The hearing of the appeals took place in the High Court of Australia on 4 and 5 October 2011. The Court delivered its decision on 14 December 2011 dismissing Amaca’s and Amaba’s appeals by a 4 to 1 majority plus costs. The outcome of this case was of critical importance to all future mesothelioma victims. The High Court rejected Amaca’s and Amaba’s argument that the expert medical evidence relied on by Mr Booth did not establish that asbestos from their brake linings was a cause of Mr Booth’s mesothelioma. The Court accepted Mr Booth’s expert medical evidence that all of his exposure to asbestos caused his mesothelioma and as asbestos from the brake linings manufactured by Amaca and Amaba that Mr Booth had worked with made a significant contribution to the asbestos in his lungs, they were responsible for Mr Booth’s mesothelioma.

Mr Booth’s case was a very important victory for all present and future mesothelioma victims. This is because Amaca and Amaba tried to argue that the medical evidence relied on by Mr Booth could not prove that asbestos from their brake linings caused his mesothelioma and in order to win that argument, it needed to discredit the expert medical evidence relied on by Mr Booth and other victims who contract mesothelioma. If Amaca and Amaba had succeeded, then all future claims for compensation for mesothelioma would have been denied. It is estimated that about 20,000 people will be diagnosed with mesothelioma over the next 30 years. Had Mr Booth failed then those people would not be able to claim compensation.